The response below is limited to issues raised by the TNA that have a bearing on Accountability.
Paragraph ii of the TNA response states: “The Commission falls dramatically short of international standards applicable to accountability processes”.
If, as assumed by the TNA, “international standards applicable to accountability processes” exist, the need for the UN Secretary General (UNSG) to appoint a panel to advise him “on the standards, benchmarks and parameters, based on international experience, that must guide any accountability process”(UN News Center, March 16, 2010) would not have arisen. The very fact that the UNSG resorted to such a measure confirms that “international standards” referred to by the TNA did not exist. Furthermore, the fact that the panel appointed by the UNSG did not fulfill their mandate clearly means that these standards do not exist even today.
Paragraph vii of the TNA response refers to “violations of IHL* amounting to war crimes and crimes against humanity. These allegations include deliberately underestimating civilian numbers in the Vanni in order to deprive them of food and medicine; deliberately or recklessly endangering the lives of civilians in the No Fire Zone; targeting civilian objects including hospitals; and executing or causing the disappearance of surrendees”. (*International Humanitarian Law.)
UNDERESTIMATING CIVILIAN NUMBERS
The charge of “deliberately underestimating civilian numbers” involves both numbers as well as who qualifies to be categorized a “civilian” in the context of an armed conflict. Regarding civilian numbers, it is an acknowledged fact that the Government of Sri Lanka (GOSL) did not unilaterally determine the numbers involved. The head count was determined jointly with the assistance of International Agencies such as the ICRC, the World Food Programme and others associated with rendering humanitarian relief. Therefore, if the GOSL is guilty of “deliberately underestimating numbers” these International Agencies also would be parties to the crime. In fact, Paragraph xx of the TNA’s response refers to a figure of 429,059 quoted by Bishop of Mannar as the number residing in Mullaitivu and Kilinochchi in early October 2008, and a figure of 360,000 quoted by the Government Agent (GA) Mullaitivu “remaining in the NFZ in Puthumattalan area in January 2009”. The figure quoted by the Bishop should be discounted as this figure is from several months before the fall of Kilinochchi in January 2, 2009. As for the figure quoted by the GA, an NFZ in Puthumattalan did not exist in January 2009. In fact, the NFZ at Puthumattalan was established only on February 11, 2009. Such contradictions together with the physical challenges associated with estimating the population within a NFZ in the midst of an armed conflict makes conclusions reached would be based on unreliable numbers.
Another issue that has a direct bearing in the head count is that in an armed conflict no party or parties to the conflict are obliged to supply humanitarian aid to the adversary. Such aid should be supplied by Agencies whose mission is humanitarian relief. The duty of parties to the conflict is only to provide access to such Agencies. In this instance by undertaking to supply humanitarian aid to those in the conflict zones associated with the adversary, the GOSL in fact went beyond its call of duty. Ironically, the GOSL was supplying humanitarian aid and relief to the LTTE, the other party engaged in this armed conflict.
Since the definition of a “civilian” is relevant to charges of “deliberately or recklessly endangering the lives of civilians…and targeting of civilian objects”, and to the issue of accountability, it is necessary to deal with this issue in detail in this response, regardless of how the issue has been dealt with in the LLRC report.
CIVILIANS in ARMED
A fact that should be borne in mind when evaluating violations is the context in which the conflict occurred. As stated before, all concerned including the TNA and the Darusman Report acknowledge that the conflict was an “armed conflict”. Therefore strategies adopted have to be judged as violations of International Humanitarian Law. Its applicable rules are codified in Additional Protocol II of 1977 which is applicable to the conflict in Sri Lanka, since it was a non-international armed conflict, meaning an internal conflict. Another fact that should be borne in mind relates to the issue of No Fire Zones (NFZ). Such zones are created for the safety of those not participating in the conflict. However they become recognized and accepted as zones free of conflict ONLY if there is mutual agreement by parties to the conflict. A unilateral declaration that a particular area is a NFZ does not make it a safe zone (Rules 35 and 36 of Customary IHL). In the case of the Sri Lankan conflict none of the so-called NFZs were safe zones because the declarations were unilateral by the GOSL. In fact, the moment the LTTE took the civilians hostage and trapped them and used them as a human shield, they became an instrument of war for the protection of the LTTE, thereby affecting the military operations of the GOSL. Consequently, no person within the conflict zone would come under the category of “civilians” under rules of IHL.
Traditionally, 4 groups are present in conflict zones and are categorized as: 1) Civilians, meaning those who did not “directly participate in the hostilities”; 2) Former combatants who had discarded their uniforms and abandoned their weapons; 3) Combatants who had discarded their uniforms but retained their arms; 4) Regular combatants. Under IHL rules, groups belonging to categories 3 and 4 forfeit their right of protection by being combatants. Although Groups 1 and 2, are entitled to protection under provisions of IHL, the fact that all of them directly or indirectly participated in the hostilities caused them to forfeit their right of protection.
Additional Protocol II Article 13 addressing “protection of the civilian population”, in paragraph 3 states: “Civilians shall enjoy the protection afforded by this part, unless and for such time as they take a direct part in the hostilities”. The justification to categorize all within the conflict zone as directly participating in hostilities by being human shields is confirmed in the opinion expressed in Part 1: Recommendations of the ICRC concerning the interpretation of international humanitarian law relating to the notion of direct participation in hostilities, Vol. 90, No. 872, December 2008, which states: “Further, large numbers of unarmed civilians who deliberately gather on a bridge in order to prevent passage of government ground forces in pursuit of an insurgent group would probably have to be regarded as directly participating in hostilities”. Commenting on what constitutes “Constitutive elements of direct participation” the above recommendations state: “the act must be likely to adversely affect the military operations or military capacity of a party to the armed conflict”.
Of the many thousands in the conflict zone many directly participated in activities to adversely affect and hinder GOSL military operations by constructing fortifications, protecting LTTE military installations by being human shields, and being in the vicinity of protected objects such as hospitals. Such civilians lost their right to be protected. However, it is impossible to ascertain the proportion of civilians involved. There is no dispute of the fact that a considerable proportion of those within the conflict zone directly participated in the hostilities and/or rendered material support to hinder the efforts of the Government forces in one form or another and at one time or another, thereby causing them to forfeit protection throughout the operation or at such times. This invalidates the TNA’s contention that the population in the conflict zone was “predominantly civilian”.
Additional Protocol II Article 4 deals with “Fundamental Guarantees”. According to Customary IHL Rule 96 states: “The taking of hostages is prohibited” and Rule 97 states: “The use of human shields is prohibited”( International Review of the Red Cross, Vol. 87 No. 857 March 2005). Human shield is defined as “…using the presence (or movement) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations”. According to this document “Fundamental guarantees apply to all civilians in the power of a party to the conflict”(p. 195). Although this provision normally applies to civilians and combatants captured by or surrendered to one of the parties to the conflict it should by implication also apply to those held hostage or as human shields because they were under the “power” of the LTTE. Therefore, it was the LTTE who violated IHL’s Fundamental guarantees to those within the conflict zone by forcing them to accompany the LTTE during their retreat and prevailing on them to voluntarily or involuntarily render support to the LTTE military efforts thereby causing them to lose their right of protection.
The TNA response raises the issue “…whether the security forces could have used alternatives to the use of heavy weapons in order to minimize civilian casualties”. Clearly, the fact that the civilians were behind fortifications presented limited options. A siege would not only have aggravated the suffering of the civilians by prolonging the conflict but also would have amounted to collective punishment; a strategy prohibited under Article 4 of the Additional Protocol II. Furthermore, since the conflict zones were protected by fortifications, the only option open was to respond to LTTE artillery fire by right of self defence.
Above all, the primary mission of the Government forces was to fulfill the provision stated in Article 3 paragraph 1 of Additional Protocol II which states: “Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State”.
The TNA maintains that a “credible accountability process” is needed to establish the truth. The truth is:
* The LTTE compelled the civilian population to render material support to its military operations by either directly or indirectly participating in hostilities thereby forfeiting their right to protection as civilians.
* No one is in a position to establish the duration and how many persons rendered material support to the LTTE or whether the support rendered amounted to participating in hostilities.
* In view of these existential realities the notion that all those within the conflict zone other than the uniformed LTTE were civilians, is clearly flawed.
* The strident call for “Accountability” is based on the above flawed notion.
The fact that the LTTE compelled civilians to support their military efforts voluntarily or involuntarily means that they ceased to qualify as civilians and lost the protection offered under IHL for durations that varied from consistent to intermittent. The charge of indiscriminate shelling of civilian is baseless due to the inability to identify combatants and those directly or indirectly participating in hostilities from those who had no part in the conflict. The fact that the LTTE ensured that those in the conflict zone were compelled to render whatever support they could throughout the conflict means that those who were entitled to protection under provisions of IHL were few in number. Under these conditions of uncertainty as to who qualified to be categorized as a civilian, the relevance of the Concept of Proportionality becomes questionable.
Successive Sri Lankan Governments had presented the conflict as an internal Law and Order situation and not as an armed conflict, thereby NOT invoking IHL provisions because of a flawed notion that doing so would legitimize the LTTE – a non-state actor; this despite the fact that the Cease Fire Agreement recognized the LTTE as a party to the conflict on par with the then Government. The LLRC has to be commended for presenting the conflict in the context of IHL. Had this approach been adopted earlier, Sri Lanka could have dismissed charges regarding IDPs held in camps because Article 5 of Additional Protocol II permits persons associated with the conflict to be interned until security issues are resolved. Other issues that need to be addressed are: 1) The need to invoke the right of a State “by legitimate means to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State as provided for under Article 3 of the Additional Protocol II of 1977”; 2) The right of self- defence when subjected to artillery fire; 3) Violation of Fundamental guarantees of those held hostage and made to function as a human shield by the LTTE thereby causing them to lose their right of protection as civilians under rules of IHL. Building on the initiative taken by the LLRC should place Sri Lanka in a strong position to face future challenges.